Nelson v. Schoettgen

HELD, J.,

pro

tem.

The plaintiffs herein, on July 20, 1932, entered into an agreement with defendant, whereby defendant leased to plaintiffs five certain quartz claims in the county of Tuolumne. The lease also contained an option to purchase the properties for the sum of $62,500, of which sum $14,400 was to be paid in ninety-six consecutive monthly installments of $150 each, beginning on the first day of July, 1932. The remaining $48,100 was to be paid in eight annual installments in varying amounts, beginning on January 10, 1934.

Two clauses in this agreement are the basis of the present action. The first reads as follows: “Work upon said property shall commence upon the execution of this agreement, and such work shall continue thereafter through the life of this agreement, and there shall be performed in and upon said property each month thereafter not less than twenty-six shifts of work: a shift being defined as eight hours’ working time for one man, as defined by the U. S. Department of Commerce.”

The second reads as follows: “The party of the second part (the plaintiffs) may at any time demand an abstract, and the party of the first part (the defendant) agrees to furnish same within a period of thirty days, and should there be any doubt as to the herein described claims not being clear, then the party of the first part agrees to clear same, and waive all within described payments, both monthly

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and yearly, until such time as said claims have been fully cleared and guaranteed by the Title Company.”

The complaint alleges that the agreement was entered into by plaintiffs on the express representations of defendant that he had good and clear title to the property described, and that relying on the truth of said representations, the plaintiffs paid defendant $1,050 on account of the purchase price, and also paid out $7,000 for labor in working the property, and $7,000 for machinery and equipment installed thereon. It is also alleged that defendant’s title to three of said mining claims was defective, and that thereupon plaintiffs rescinded said agreement and tendered to defendant a quitclaim deed to said property. It is further alleged in the complaint that in and by said agreement, defendant obligated himself to furnish an abstract of title to plaintiffs within thirty days after demand therefor; that on the twenty-ninth day of August, 1932, plaintiffs demanded of defendant that he furnish such abstract, but that defendant refused to comply with such demand. The plaintiffs pray judgment against defendant for $15,050, the aggregate of the aforesaid sums, and for such sum as they might be required to expend in the defense'of a certain action instituted against them by an adverse claimant to a portion of the property.